A California court of appeal has rejected consolidation of dissimilar asbestos cases for trial. Foster Wheeler v. Superior Court, 2007 WL 3230293 (1st Dist. Case No. A119429) (Nov. 2, 2007) overturned a San Francisco trial court order consolidating for trial two asbestos cases, one a wrongful death action involving mesothelioma and the other a personal injury action involving kidney cancer. Most agree that asbestos is the sole cause of mesothelioma, while kidney and other cancers have many possible causes. The court of appeal held that “[t]he entitlement to relief is obvious and there is a compelling need for immediate action,” and so granted a writ commanding the trial court to vacate its consolidation order.
Relying on similarities between California and federal consolidation statutes, Foster Wheeler adopted the set of eight criteria for consolidation in asbestos cases articulated by Malcolm v. National Gypsum Co. (2d Cir. 1993) 995 F.2d 346, 350-351: (1) common worksite; (2) similar occupation; (3) time of exposure; (4) type of disease; (5) whether the injured party is a plaintiff or a decedent; (6) status of discovery in each case; (7) whether all plaintiffs are represented by the same counsel; and (8) type of cancer alleged. In Foster Wheeler, the only factor favoring consolidation was common counsel (there was dispute about discovery). All the other factors opposed consolidation. Because of the “predominance of dissimilar issues,” Foster Wheeler rejected consolidation of these cases.
Although the court of appeal did not order its decision published, the victorious counsel have requested publication and and others are expected to join. Even if the decision is not published, we expect asbestos trial courts in the Bay Area, if not throughout the state, to take notice.
The court held that its decision was final immediately, allowing for speedier review should plaintiffs seek Supreme Court review.
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